Unit 05

Meaning of Property

Introduction
The word property is used in numerous senses in general. If one looks around in the surroundings,
everything available may be categorized as Property. Every object, whether tangible or intangible having
some value to human beings, may be termed as Property. The essential characteristic of Property is the
value attached to it. In one way or the other, it is a source of wealth. The value, although may be either
monetary or personal. In a general sense, therefore Property consists of land, shares, buildings and debts
due to another person. However, the term when used in the legal sense has a definite connotation. It is the
right to enjoy and to dispose of certain things in an absolute manner as one thinks it fit.

Origin

The word “property” is derived from the Latin word proprietary and the French equivalent properties, which
means a thing owned. The concept of property and ownership are very similar to each other. However,
there is a fine line that distinguishes the two terms. It will not be incorrect to state that humans have been
aware of their rights to possess what they rightfully own for long. The term property has been widely
interpreted by various jurists such as Salmond, Bentham and Austin. Close observation of the definitions
given by them will help us understand the concept in a better manner.

Definition of Property
Eminent jurist Salmond while defining the term property, observed that the term might be understood in
one of the three senses mentioned below:

(i) The term property includes all the legal rights of a person. That is to say that it includes complete
ownership of a man on material as well as incorporeal things.

(ii) The term includes not a man’s personal rights, but only his proprietary rights.

(iii) The term includes the rights of ownership in material things such as building etc. According to another
jurist, Bentham, the term property includes ownership of material objects alone. He has, in a way,
interpreted the term in a narrow sense. According to Austin, Property denotes the greatest right of
enjoyment known to the law, including servitudes. The Property includes both proprietaries as well as the
personal rights of a man.

Types of Property
Tangible Property:

In law, tangible property is literally anything that can be touched, and includes both real property and
personal property (or moveable property), and stands in distinction to intangible property.

Movable and Immovable Property

In layman language, it is very much clear that movable property is that which can be moved from one place
to another without any damage. Immovable property, on the other hand, is the one which cannot be moved
and those things which are attached to the earth but with certain exceptions.

Intangible Property:
Intangible personal property is an item of individual value that cannot be touched or held. Intangible
property is not just limited to individuals. Companies also have intangible property, such as patents,
copyrights, life insurance contracts, securities investments, and partnership interests.
Intellectual Property
Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works;
designs; and symbols, names and images used in commerce.
Forms of Intellectual Property
[Link]
Copyright is a type of intellectual property that gives its owner the exclusive right to copy and distribute
a creative work, usually for a limited time.
Ex:
Novel, poem, photograph, Movie, Lyrics to a song, sound recording, painting
Conditions for Copyright Protection
Copyright protection is conferred on all Original literary, artistic, musical or dramatic, cinematograph and
sound recording works. Original means, that the work has not been copied from any other source. Copyright
protection commences the moment a work is created, and its registration is optional. However it is always
advisable to obtain a registration for a better protection. Copyright registration does not confer any rights
and is merely a prima facie proof of an entry in respect of the work in the Copyright Register maintained
by the Registrar of Copyrights.
[Link]
A trademark can be any word, phrase, symbol, design, or a combination of these things that identifies your
goods or services. It’s how customers recognize you in the marketplace and distinguish you from your
competitors.
In addition to words, trademarks can also consist of slogans, design, or sounds. Trademark provides
guarantee of quality and consistency of the product or service they identify. Companies expend a great deal
of time, effort and money/ in establishing consumer recognition of and confidence in their marks.

Examples
[Link]
A patent is an exclusive right granted for an invention, which is a product or a process that provides, in
general, a new way of doing something, or offers a new technical solution to a problem.
There are three types of patents,
Utility patents may be granted to anyone who invents or discovers any new and useful process, machine,
article of manufacture, or composition of matter, or any new and useful improvement thereof;
Design patents may be granted to anyone who invents a new, original, and ornamental design for an
article of manufacture; and
Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct
and new variety of plant.
Examples:
• Pen with scanner. With a machine as small as a pen, you can transfer text from paper directly into
a computer
• The possibility to move
• System for shorter flight times
• Steel kidneys
• The blood rocker
• Packaging success
• Life-saving invention
[Link] Designs
Industrial design intellectual property refers to compositions of colors or lines which give a three-
dimensional look to a handicraft or product. This constitutes the aesthetic or ornamental part of an article
in a legal sense.
Examples:
The contour of a car hood, the graphical user interface on your phone or the shape of a stylish piece of
furniture.
[Link] Secrets
Trade secrets are a type of intellectual property that comprise formulas, practices, processes, designs,
instruments, patterns, or compilations of information that have inherent economic value because they are
not generally known or readily ascertainable by others, and which the owner takes reasonable measures to
keep secret.
Examples:
• KFC's secret blend of 11 herbs and spices.
• Coca-Cola's recipe for their signature drink.
• Google's search algorithm.
• McDonald's Big Mac “special sauce.”
• Secret client lists at any company.
Comparison of Copyrights , Trademarks and Patents :

History and Evolution of Copyright in India

INTRODUCTION:
th
Copyright gained its recognition after the invention of printing press in 15 century which enabled
reproduction of literary work. Copyright is the exclusive right to copy or to reproduce the work in which
copyright subsists. Copyright is the set of exclusive rights granted to the author or creator of an original
work, including the right to copy, distribute and adapt the work in relation to: literary, dramatic, musical,
artistic, cinematography, sound recordings. Copyright is also the author’s right for not allowing anyone to
copy his/her original work. Copyright lasts for a certain time period after which the work is said to enter
the public domain. Copyright gives protection for the expression of an idea and not for the idea itself. For
example, many authors write textbooks on a particular subject matter for college students. For example a
textbook of Biology will have almost same topics, same diagrams, same illustrations, covered in several
books by different authors, but each author will have a copyright on the book written by him / her, provided
the book is not a copy of some other book published earlier. The Copyright in this case will remain with
the author for the lifetime plus 60 more years. But if the concept of that book is just in the idea state and
not in the form of a published book, copyright cannot subsist in it.

Copyright has come to limelight due to the growing interest in the topic owing to the progress in Information
Technology, advancement in the fields of digital printing, communication and entertainment.
Technological progress has made reproduction of copyright material easy, but at the same time piracy of
original work also has grown immensely. Copyright is international in nature and hence many countries
together joined to form conventions for protection of copyright. The Berne Convention and Universal
Copyright Conventions are due to that effort. Most countries including India are members of these
conventions. Therefore, Indian Copyright owners can protect their ownership of copyright internationally.
The Copyright Act, 1957, The Copyright Rules, 2013 and the International Copyright Order, 1999 regulates
Copyright protection in India.
 According to Section 14 of the Act, “Copyright” means the exclusive right subject to the provisions of this
Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part
thereof, namely:-
(a) in the case of a literary, dramatic or musical work, not being a computer programme, -
(i) to reproduce the work in any material form including the storing of it in any medium by electronic
means;
(ii) to issue copies of the work to the public not being copies already in circulation;
(iii) to perform the work in public, or communicate it to the public;
(iv) to make any cinematograph film or sound recording in respect of the work;
(v) to make any translation of the work;
(vi) to make any adaptation of the work;
(vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to
the work in sub-clauses (i) to (vi);
(b) in the case of a computer programme,-
(i) to do any of the acts specified in clause (a);
(ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer
programme:
Provided that such commercial rental does not apply in respect of computer programmes where the
programme itself is not the essential object of the rental.
(c) in the case of an artistic work,-
(i) to reproduce the work in any material form including depiction in three dimensions of a two dimensional
work or in two dimensions of a three dimensional work;
(ii) to communicate the work to the public;
(iii) to issue copies of the work to the public not being copies already in circulation;
(iv) to include the work in any cinematograph film;
(v) to make any adaptation of the work;
(vi) to do in relation to an adaptation of the work any of the acts specified in relation to the work in sub-
clauses (i) to (iv);
(d) In the case of cinematograph film, -
(i) to make a copy of the film, including a photograph of any image forming part thereof;
(ii) to sell or give on hire, or offer for sale or hire, any copy of the film, regardless of whether such copy
has been sold or given on hire on earlier occasions;
(iii) to communicate the film to the public;
(e) In the case of sound recording, -
(i) to make any other sound recording embodying it;
(ii) to sell or give on hire, or offer for sale or hire, any copy of the sound recording regardless of whether
such copy has been sold or given on hire on earlier occasions;
(iii) to communicate the sound recording to the public.
HISTORY OF COPYRIGHT IN INDIA
Copyright law entered India in 1847 through an enactment during the East India Company’s regime.
According to the 1847 enactment, the term of copyright was for the lifetime of the author plus seven years
post-mortem. But in no case could the total term of copyright exceed a period of forty-two years. The
government could grant a compulsory licence to publish a book if the owner of copyright, upon the death
of the author, refused to allow its publication. The act of infringement comprised in a person’s unauthorized
printing of a copyright work for (or as a part of attempt of) “sale hire, or exportation”, or “for selling,
publishing or exposing to sale or hire”. Suit or action for infringement was to be instituted in the “highest
local court exercising original civil jurisdiction.” The Act provided specifically that under a contract of
service copyright in “any encyclopaedia, review, magazine, periodical work or work published in a series
of books or parts” shall vest in the “proprietor, projector, publisher or conductor.” Infringing copies were
deemed to be copies of the proprietor of copyrighted work. Importantly, unlike today, copyright in a work
was not automatic. Registration of copyright with the Home Office was mandatory for the enforcement of
rights under the Act. However, the Act also specifically reserved the subsistence of copyright in the author,
and his right to sue for its infringement to the extent available in law other than the 1847 Act.
In 1914, the then Indian legislature enacted a new Copyright Act which merely extended most portions of
the United Kingdom Copyright Act of 1911 to India. It did, however, make a few minor modifications.
First, it introduced criminal sanctions for copyright infringement (sections 7 to 12). Second, it modified the
scope of the term of copyright; under section 4 the “sole right” of the author to “produce, reproduce, perform
or publish a translation of the work shall subsist only for a period of ten years from the date of the first
publication of the work.” The author, however, retained her “sole rights” if within the period of ten years
she published or authorized publication of her work a translation in any language in respect of that language.
The 1914 Act was continued with minor adaptations and modifications till the 1957 Act was brought into
force on 24th January, 1958.
EVOLUTION OF COPYRIGHT IN INDIA
Before the Act of 1957, copyright protection was governed by the Copyright Act, 1914 which was the
extension of British Copyright Act, 1911. The Act has been amended after 1957 in 1983, 1984, 1992, 1994
and 1999. In May 2012, both houses of the Indian Parliament unanimously passed the Copyright
Amendment Bill, 2012, bringing Indian copyright law into compliance with the World Intellectual Property
Organization Treaties – the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms
Treaty (WPPT).
Some of the important amendments to the Copyright Act in 2012 are: getting the 1957 the Act in conformity
with WCT and WPPT, extension of copyright protection in the digital environment such as penalties for
circumvention of technological protection measures and rights management information, and liability of
internet service provider and introduction of statutory licences for cover versions and broadcasting
organizations; ensuring right to receive royalties for authors, and music composers, exclusive economic
and moral rights to performers, equal membership rights in copyright societies for authors and other right
owners and exception of copyrights for physically disabled to access any works.
The amendments made in Copyright (Amendment) Act 2012 can be majorly categorized into:
(1) Amendments to rights in artistic works, cinematograph films and sound recordings.
The amendments clarify the rights in artistic works, cinematograph films and sound recordings, by
providing that the right to reproduce an artistic work, to make a copy of a cinematograph film or embodying
a sound recording now includes ‘storing’ of it in any medium by electronic or other means and therefore
address some of the modern digital era challenges.
(2) WCT and WPPT related amendment to rights
The obligation under Article 11 of the TRIPS Agreement, Article 7 of WCT and Article 9 of WPPT is to
provide for ‘commercial rental’ rights for computer programmes and cinematograph films. This right was
introduced in section 14 by using the word ‘hire’.
The term ‘hire’ in sections 14(d)&(e) with regard to cinematograph film and sound recording, respectively,
is replaced with the term ‘commercial rental’. The primary reason behind the replacement is to curtail the
possibility of interpreting the term ‘hire’ to include non-commercial hire and also to keep in sync with the
replacement (1999 amendment) of the term ‘hire’ to ‘commercial rental’ with respect to computer pro-
gramme in section 14(b).
(3) Author-friendly amendments on mode of Assignment and Licenses
Section 18(1) provides that the owner of a copyright in any work or prospective owner of a future work
may assign the copyright, and the proviso to this sub-section clarifies that in the case of future work,
assignment will come into force only when the work comes into existence. Another proviso under S. 18(1),
inserted through Amendment Act 2012, provides that the author of a literary or musical work incorporated
in a cinematograph film or sound recording shall not assign the right to receive royalties in any form other
than as a part of the film or sound recording.
(4) Amendments facilitating Access to Works
• Grant of Compulsory Licenses (Section 31,A,B)
• Grant of Statutory Licenses (Section 31C,D)
• Administration of Copyright Societies (Section 33,34,35)
• Fair Use Provisions (Section 52)
• Access to copyrighted works by the Disabled (Section 31B,52(1))
• Relinquishment of copyright (Section 21)

(5) Strengthening enforcement and protecting against Internet piracy

Section 53, dealing with importation of infringing copies, has been substituted with a new section providing
detailed border measures to strengthen enforcement of rights by making provision to control import of
infringing copies by the Customs Department, disposal of infringing copies and presumption of authorship
under civil remedies. The new section 65A, introduced for protection of technological protection measures
(TPM) used by a copyright owner to protect his rights. Section 65B has been introduced to provide pro-
tection of rights management information, defined under clause (xa) of section 2.
(6) Reform of Copyright Board and other minor amendments
Considering the diverse nature of issues being dealt with by the Copyright Board, section 11 relating to the
constitution of the Copyright Board has been amended to make it a body consisting of a Chairman and two
members.
AN OVERVIEW OF THE COPYRIGHT ACT, 1957
Introduction
Copyright law as its name suggests is the simple law that suggests if you create something you own it and
only you get to decide what happens next with it. In India, law related to copyright is governed by
the Copyright Act, 1957. The objective of this copyright law is mainly two fold: first to assure authors,
composers, artists, designers and other creative people, who risk their capital in putting their works before
the public, the right of their original expression, and second to encourage others to build freely upon the
ideas and information conveyed by a work.
Historical development in India
In India, the earliest law of copyright was enacted by the British during the realm of East India Company
that is the Indian Copyright Act, 1847 which was passed for the enforcement of rules of English copyright
in India. After it, by Copyright Act 1911, this law was repealed, replaced and applied to all British colonies
including India. Further, it was again modified in 1914 by the Indian Copyright Act, 1914, which remained
applicable in India until replaced by the Copyright Act, 1957 by the parliament of sovereign India.
Subject matter of copyright
All subject matters protected by copyright are called ‘works’. Thus according to Section 13 of The
Copyright Act 1957, it may be subjected for the following works:
• Original Literary Work,
• Original Dramatic work,
• Original Musical work,
• Original Artistic Work,
• Cinematography films, and
• Sound recordings.
Original Literary Work
It is the product of the human mind which may consist of a series of verbal or numerical statements, not
necessarily possessing aesthetic merit, capable of being expressed in writing, and which has been arrived
at by the exercise of substantial independent skill, creative labor, or judgment. The Copyright Act,1957
provides an inclusive definition of literary work, according to which the literary work includes computer
programming, tablets, and compilations including computer database.

Original Dramatic Work

According to the Copyright Act,1957, the dramatic work includes any piece for recitation, choreographic
work or entertainment in dumb shows, the scenic arrangement or acting form which is fixed in writing or
otherwise but does not include a cinematographic film. Since the definition is an inclusive one, the other
things fall within the general meaning of dramatic work, and may also be covered by the definition.

Original Musical Work

According to the Copyright Act, 1957, the musical work means any work consisting of music and includes
any graphical notion of such work, but does not include any words or any action intended to be sung, spoken
or performed with the music. In order to qualify for copyright protection, a musical work must be original.
Original Artistic Work

According to the Copyright Act, 1957, the artistic work includes any painting, sculpture, drawing,
engraving photograph of any work possessing artistic qualities. However, it also includes the architecture
and artistic craftsmanship of such works.

Cinematographic Films

According to the Copyright Act,1957 cinematographic films includes any work of visual recording and a
sound recording accompanying such visual recording and the expression cinematograph shall be construed
as including any work produced by any process analogous to cinematographic including video films.

Sound Recording

According to The Copyright Act, 1957, sound recording suggests that a recording of sounds from which
that sound may be produced regardless of the medium on which such recording is made or the method by
which the sounds are produced.

Clause (a) of this Section 13 provides the definition of original work whereas clause (b) and (c) protect by-
product works. This Section stipulates that copyright is subject to the provisions of the aforesaid Section
and therefore the different provisions of the Act don’t exist de-hora and outside the ambit of the Act, it’s a
right created under the statute and no right outside the aforesaid Act is claimed.

Scope of Copyright

• Copyright is provided for a wide range of expressions like literary works, Artistic work, music
and Cinematography.
• Literary works include novels, books, newspaper articles, journals, research papers, magazines,
instruction manuals.
• Artistic work includes painting, sculpture, diagrammatic representation, drawing.
• Music includes original music work and a specific combination of melody and harmony.
• Cinematography includes movies, tv shows, documentaries, television recording of events.
• It is provided for work and not for ideas.

Copyright Protection

Copyright protection is given to all original literary, artistic, musical or dramatic, sound recording and
cinematography. The originality of the work is the prerequisite to claim for copyright. Original work
means that the work has not been copied. A work is protected irrespective of its content or quality.

Registration for Copyright

It is not mandatory to register the work to claim copyright and it commences the moment the work is
created. However, it is advised to register the work for better protection, it will serve as proof in a matter
of dispute.

Section 13 of the Copyright Act, 1957 states that the copyright can be given only for the original work.
Copyright is usually provided for 60 years
Rights of the copyright holder
In the Copyright Act, 1957, the owner possesses the negative rights which are to prevent others from using
his works in certain ways and to claim compensation for the usurpation of that right. In this Act, there are
two types of rights given to the owner:
• Economical rights;
• Moral rights.
Economic rights
This right is also known as the Exclusive Rights of the copyright holder provided under Section 14. In this
Act different types of work come with different types of rights. Such as:

In the case of original literary, musical, and dramatic work:

• Right to reproduce;
• Right to issue copies;
• Right to perform at public;
• Right to make cinematography and sound recording;
• Right to make any translation;
• Right to adaptation; and
• Right to do any other activities related to the translation or adaptation.

In the case, of computer program work:

• Right to do any act aforesaid mentioned; and
• Right to sell, rent, offer for sale of the copyrighted work.
In the case of artistic work:
• Right to reproduce;
• Right to communicate;
• Right to issue copies;
• Right to make any cinematography and sound recording;
• Right to make an adaptation; and
• Right to do any other activities related to the translation or adaptation.
In case of a cinematograph film work:
• Right to sell, rent, offer for sale of the copyrighted work; and
• Right to communicate.
In the case of a sound recording work:
• Right to communicate;
 • Right to issue copies; and
• Right to sell, rent, offer for sale of the copyrighted work.
Moral rights
In addition to the protection of economic rights, the Copyright Act, 1957 conjointly protects the ethical
rights, that is due to the actual fact that a literary or inventive work reflects the temperament of the creator,
just as much as the economic rights reflects the author’s need to keep the body and the soul of his work out
from commercial exploitation and infringement. These rights are supported by Article 6 of the Berne
Convention of 1886, formally referred to as a world convention for the protection of literary and inventive
works, whose core provision relies on the principle of national treatment, i.e. treats the opposite good as
one’s own.
Section 57 of The Copyright Act,1957 recognize two types of moral rights which are:
• Right to paternity– which incorporates the right to assert the authorship of the work, and right to
forestall others from claiming authorship of his work; and
• Right to integrity- which incorporates right to restrain, or claim of damages in respect of any
distortion, modification, mutilation, or any other act relates to the said work if such distortion,
multiplication or alternative act would be prejudiced to claimant honor or name.
Authorship and Ownership in copyright
Section 17 of this Act recognizes the author as the first owner, which states that subject to the provision of
this Act, the author of a work shall be the first owner of the copyright therein:
• In the case of literary or dramatic composition, the author,
• In the case of musical work, the musician,
• In the case of creative work apart from photography, the artist,
• In the case of photographic work, the artist,
• In the case of cinematographic or recording work, the producer,
• In case of any work generated by any computer virus, the one who created.
However, this provision provided to bound exception:
• In case of creation is made by the author underemployment of the proprietor of any newspaper,
magazine or any periodic, the said proprietor,
• In the case where a photograph is taken, painting or portrait is drawn, cinematograph is made for
the valuable consideration of any person, such person,
• In case of a work done in the course of the author’s employment under the contract of service, such
employer,
• In case of address or speech delivered on behalf of another person in public, such person,
• In the case of government works, the government,
• In the case of work done under direction and control of public undertaking such public undertaking,
and
• In the case of work done in which provision of Section 41 apply, concerned international
organizations.
Assignment of copyright
The owner of the copyright can generate wealth not only by exploiting it but also by sharing it with others
for mutual benefit. This can be done by the way of assignment and licensing of copyright.
Only the owner of the copyright has the right to assign his existing or future copyrighted work either wholly
or partly and as a result of such assignment the assignee becomes entitled to all the rights related to
copyright to the assigned work, and he shall be treated as the owner of the copyright in respect of those
rights.
Mode of the assignment agreement
As per Section 19, these conditions are necessary for a valid assignment:
• It should be in writing and signed;
• It should specify the kinds of rights assigned and the duration or territorial extent; and
• It should specify the amount of royalty payable if required in any case.
It is also provided that, if the period is not mentioned in the agreement it will be considered as five years
and if the territorial extent is not stipulated in the agreement, it will be considered as applicable to the whole
of India.
Disputes related to the assignment of copyright
According to the Copyright Act, 1957, the appellant board where the receipt of the complaint by the
assignor and after holding necessary inquiry finds that the assignee has failed to make the exercise of the
rights assigned to him, and such failure is attributed to any act or omission of the assignor, may by suitable
order, revoke such assignment. However, if the dispute arises with respect to the assignment of any
copyright then that appellate board may also order the recovery of any royalty payable.
Operation of law in assignment
According to The Copyright Act, 1957, where under a bequest a person is entitled to the manuscript of any
literary, dramatic or any other kind of work and such work has not been published before the death of the
testator, unless the contrary is proved such person shall be treated as the owner for such work.
Infringement and remedies
Where a person intentionally or unintentionally infringes the rights of the copyright holder, the holder may
be subject to the following remedies available under this Act.
Civil remedies :
These remedies are given under Section 55 of the Copyright Act,1957 which are:
Interlocutory injunction
This is the most important remedy against the copyright infringement, it means a judicial process by which
one who is threatening to invade or has invaded the legal or equitable rights of another is restrained from
commencing or continuing such act, or is commanded to restore matters to the position in which they stood
previous to the relation. Thus for granting the interlocutory injunction, the following three factors are
considered as necessary:
• Prima facie case, an assumption of the court that the plaintiff can succeed in the case and became
eligible for relief.
• Balance of convenience, in it the court will determine which parties suffer the greater harm, this
determination can vary with the facts of each case.
 • Irreparable injury, it is difficult to decide and determine on a case by case basis. Some examples
of it include- loss of goodwill or irrevocable damages to reputation, loss of market share.
Pecuniary remedies :
There are three types of pecuniary remedies provided:
1. An account of profit, which lets the owner seek the sum of money made, equal to the profit made
through unlawful conduct.
2. Compensatory damages, which let the copyright owner seek the damages he suffered.
3. Conversational damages, which are assessed to the value of the article.
Criminal remedies :
For infringement of copyright, the criminal remedies provided under Section 63:
• Imprisonment, not less than 6 months which may extend up to 3 years;
• Fine may not be less than 50,000 which may extend up to 2,00,000;
• Search and seizure of copyrighted goods; and
• Delivery of copyrighted goods to the copyrighted owner.
In the case of repeat offenders, minimum punishment terms of 1 year and fine of 1 lakh however, the highest
punishment will be the same as the first time offender.
Exceptions
This act shall not constitute copyright infringement in cases of:
Fair Dealing
Fair dealing is the statutory limitation on the exclusive right of the copyright owner which permits
reproduction or use of copyrighted work in a manner that otherwise would have constituted infringement.
This law is given under Section 52 of the Copyright Act,1957 according to which the free uses can be made
for any work except computer program for the purposes:
• For private and personal use including research,
• For criticism and review,
• For reporting of current events or issues including lectures in public,
• For broadcasting in cinematographic films or by posting photographs,
• For reproduction and reporting of any judicial proceeding,
• For reproduction, or publication of any kind of work prepared by the secretariat of a legislature,
• For reproduction of any kind of work in a certified copy made or supplied accordance with any law,
• For reading and recitation of any literary or dramatic work in the public domain,
• For publication of any non-copyright matter bonafide intended for the use of educational institutes,
and
• For recording any sound by the owner of the right in the work.
What is Copyright Infringement?
Copyright infringement refers to the unauthorized use of someone’s copyrighted work. Thus, it is the use
of someone’s copyrighted work without permission thereby infringing certain rights of the copyright holder,
such as the right to reproduce, distribute, display or perform the protected work.
Criteria for Infringement
Section 51 of the Copyright Act specifies when a copyright is infringed. According to Section 51 of the
Act, Copyright is deemed to be infringed if:
• A person without obtaining the permission of the copyright holder does any act which only the
copyright holder is authorised to do.
• A person permits the place to be used for communication, selling, distribution or exhibition of an
infringing work unless he was not aware or has no reason to believe that such permission will result
in the violation of copyright.
• A person imports infringing copies of a work
• A person without obtaining the authority from the copyright holder reproduces his work in any
form.
Copyright Infringement examples
• If a person uses someone’s song as background music in his/her music video then he could be made
liable for copyright infringement.
• If a person downloads movies or songs from an unauthorized source then it will amount to copyright
infringement.
• A person is free to record a TV program to view it later, but if he transfers or distributes it to others
then it becomes a copyright infringement.
Copyright infringement elements
• The work was the original creation of the author
• The defendant actually copied the work of the author. It is important to note that not all factually
copying is legally actionable. The substantial similarity between the works of the author and the
defendant has to be established to prove that the defendant has infringed the author’s copyright.
Copyright Issues
There are a number of issues that can arise in Copyright. These are discussed below:
• Plagiarism
Someone may copy the copyrighted material and pretend it to be his original work. People are allowed to
quote the work or refer the work but the person who is using the copyrighted work has to give the credit to
the copyright holder.
• Ownership
The issue of ownership may arise when an employer works for an organisation. In such case who has the
copyright over the work? If a person is an employer then it is the organisation which has the copyright over
the material but if a person is a freelance writer then it is the person himself who is the sole owner of the
copyrighted material.
• Derivative Works
Derivative works use the already existing work of someone. It is a new version of already existing material.
For example, translating a book into another language. A person requires a license for it but if he has not
obtained the license for it then he can be made liable for copyright infringement.
Conclusion
The copyright law is considered as an essential law of protection for a country because it enriches the
national cultural heritage of it. However, higher the level of protection given to literary, dramatic, musical
or artistic work in any country, automatically higher is the number of intelligent creation, i.e. higher its
renown. Thus, in the final analysis, we can say for economic, cultural and social development, it is the basic
pre-requisites.
Copyright – Computer Programs
In India, the Intellectual Property Rights (IPR) of computer software is covered under the Copyright Law.
Accordingly, the copyright of computer software is protected under the provisions of Indian Copyright Act
1957.

Computer program are literary works under the definition in the Copyright Act. A “computer program” is
a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a
certain result. Copyright for computer programs prohibits copying of program structure and design. The
graphics, sounds, and appearance of a computer program also may be protected as an audio-visual work;
as a result, a program can infringe even if no code was copied.

Just as a copyright came into being when the original lines of source code were written by the programmer,
so another copyright comes into being for each addition or modification to the source code that shows
sufficient originality. Because of this, a computer program generally is protected not by a single copyright
but by a series of copyrights starting when it is first written and continuing through the last modification.
EULA
A software license agreement is a contract between the licensor and purchaser of the right to use software.
Many form contracts are only contained in digital form, and only presented to a user as a click-through
where the user must "accept". As the user may not see the agreement until after he or she has already
purchased the software, these documents may be contracts of adhesion. These documents often call
themselves end-user licensing agreements (EULA).
Source Code and Object Code:
Although copyright comes into being with the writing of the source code, it is the object code which gives
the actual instructions that control the computer when the program is being executed which is generally
protected by copyright. In most instances, the source code is never revealed to the public, and thus remains
protected as a trade secret even though millions and millions of copies of the program are distributed as
object code. ddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd

The source code contained information that made it easier for a programmer to write or understand the
program. Even though source code and object code are distinct, it is still useful to maintain the concept that
the source code and the object code are just different forms of the same copyrighted work. The Copyright
Office regards the source code and object code as equivalent for purposes of registration.

Infringement of Copyrighted Software:

Infringement of copyrighted software is called Software piracy. Software piracy is the reproduction,
distribution or use of a software product without the expressed permission of its author. Software piracy is
theft - stealing someone else's original idea and product. It comes in the following common forms:
End user piracy: End users (both home and corporate users) who are utilizing unlicensed software on their
systems, or who have installed more copies than they are entitled to under their license agreements, e.g. a
company with only one license installing the software on five PCs. This form of end user piracy is called
under-licensing and is of grave concern to the Business Software Alliance (BSA).

Hard disk loading: Computer dealers pre-installing illegal copies of software onto PCs prior to sale. Some
dealers use one legally acquired copy but install it on many machines. These PCs are usually sold without
any form of licensing documentation or disks.

Software counterfeiting: The illegal duplication and sale of software in a form that is almost identical to
the genuine product.

Internet piracy: The latest and fastest growing form of software piracy. Software programs are placed by
third parties on the Internet for downloads free of charge or for a fee. Pirates tend also to use the Internet
as a means of advertising to solicit sales.

Protection of Copyright Software

Generally, copyright laws protect the form of expression of an idea, but not the idea itself. With respect to
software, this typically means that the computer program, in both human-readable i.e. Source Code and
machine-executable form i.e. Object Code, and the related manuals are eligible for copyright protection,
but the methods and algorithms within a program are not protected expression. Source code and object code
are protected against literal copying.

Copyright subsists in all original published or unpublished literary works; 'literary work' includes computer
programs, tables and compilations including computer databases in any tangible form. Therefore, work has
to be recorded into program on some tangible medium to get copyright protection. Copyright protection, is
automatic from the moment the work is embodied in some medium like ROM, Magnetic Tape, diskette

Remedies for Infringement Of Copyright Software

1. Temporary and permanent injunctions

2. Impounding and destruction of all infringing copies, including masters
3. Actual monetary damages plus the infringers' profits
4. Statutory damages
5. Court costs and reasonable attorneys' fees

Overview of Patent Act,1970

A patent is an exclusive right granted by the Government to the inventor to exclude others to use, make and
sell an invention is a specific period of time. A patent is also available for improvement in their previous
Invention. The main motto to enact patent law is to encourage inventors to contribute more in their field by
awarding them exclusive rights for their inventions. In modern terms, the patent is usually referred to as the
right granted to an inventor for his Invention of any new, useful, non-obvious process, machine, article of
manufacture, or composition of matter. The word “patent” is referred from a Latin term “patere” which
means “to lay open,” i.e. to make available for public inspection. There are three basic tests for any
invention to be patentable:
• Firstly, the invention must be novel, meaning thereby that the Invention must not be in existence.
• Secondly, the Invention must be non- obvious, i.e. the Invention must be a significant improvement
to the previous one; mere change in technology will not give the right of the patent to the inventor.
 • Thirdly, the invention must be useful in a bonafide manner, meaning thereby that the Invention must
not be solely used in any illegal work and is useful to the world in a bonafide manner.
An invention considered as new if, on the date of filing the application, any such invention is not known to
the public in any form, i.e. oral, writing, or any other form. Anything shall not be termed as inventive if
such a thing is already known to the public domain. The patent has a limited term of 20 years, which is
counted from the date of filing of the patent application. A patent is a territorial right. Thus it can only be
applied in the country where it has been granted. A patent is a territorial right. Thus it can only be applied
in the country where it has been granted. Therefore, any legal action against infringement or infringement
of patent rights can only be taken in that country. To obtain patent protection in different countries, each
country must apply for a patent. The Patent Cooperation Treaty (PCT) provides a way to file an international
patent application in which a patent can be filed through a single patent application in a large number of
countries. However, the PCT of a patent remains discretionary of the individual patent office only after the
application is filed.
What can be patented?
Sections 3 and 4 of the Indian Patents Act, 1970 clearly mentioned the exclusions regarding what can be
patented in India. There are certain criteria which have to be fulfilled to obtain a patent in India. They are:
• Patent subject:
The most important consideration is to determine whether the Invention relates to a patent subject matter.
Sections 3 and 4 of the Patents Act list non-patentable subject matter. Unless the Invention comes under
any provision of Section 3 or 4, it means that it consists of a subject for a patent.
• Novelty:
Innovation is an important criterion in determining the patent potential of an invention. Under Section 2(l)
of the Patent Act, a novelty or new Invention is defined as “no invention or technology published in any
document before the date of filing of a patent application, anywhere in the country or the world”. The
complete specification, that is, the subject matter has not fallen into the public domain or is not part of state
of the art”.
Simply, the novelty requirement basically states that an invention that should never have been published in
the public domain. It must be the newest which have no same or similar prior arts.
• Inventive steps or non-clarity:
Under Section 2(ja) of the Patents Act, an inventive step is defined as “the characteristic of an invention
that involves technological advancement or is of economic importance or both, as compared to existing
knowledge, and invention not obvious to a person skilled in the art.” This means that the invention should
not be obvious to a person skilled in the same field where the invention is concerned. It should not be
inventive and obvious for a person skilled in the same field.
• Capable of industrial application:
Industrial applicability is defined in Section 2 (ac) of the Patents Act as “the invention is capable of being
made or used in an industry”. This basically means that the Invention cannot exist in the abstract. It must
be capable of being applied in any industry, which means that it must have practical utility in respect of
patent.
These are statutory criteria for the patent of an invention. In addition, other important criteria for obtaining
a patent is the disclosure of a competent patent. A competent patent disclosure means a patent draft
specification must adequately disclose the Invention, so as to enable a person skilled in the same field
related to carrying out the Invention with undue efforts.
Rights of Patentee
• Right to exploit patent: A patentee has the exclusive right to make use, exercise, sell or distribute
the patented article or substance in India, or to use or exercise the method or process if the patent is
for a person. This right can be exercised either by the patentee himself or by his agent or licensees.
The patentee’s rights are exercisable only during the term of the patent.
• Right to grant license: The patentee has the discretion to transfer rights or grant licenses or enter
into some other arrangement for a consideration. A license or an assignment must be in writing and
registered with the Controller of Patents, for it to be legitimate and valid. The document assigning
a patent is not admitted as evidence of title of any person to a patent unless registered and this is
applicable to assignee not to the assignor.
• Right to Surrender: A patentee has the right to surrender his patent, but before accepting the offer
of surrender, a notice of surrender is given to persons whose name is entered in the register as having
an interest in the patent and their objections, if any, considered. The application for surrender is also
published in the Official Gazette to enable interested persons to oppose.
• Right to sue for infringement: The patentee has a right to institute proceedings for infringement of
the patent in a District Court having jurisdiction to try the suit.
Obligations of patentee
• Government use of patents: A patented invention may be used or even acquired by the Government,
for its use only; it is to be understood that the Government may also restrict or prohibit the usage of
the patent under specific circumstances. In case of a patent in respect of any medicine or drug, it
may be imported by the Government for its own use or for distribution in any dispensary, hospital
or other medical institution run by or on behalf of the Government. The aforesaid use can be made
without the consent of the patentee or payment of any royalties. Apart from this, the Government
may also sell the article manufactured by patented process on royalties or may also require a patent
on paying suitable compensation.
• Compulsory licenses: If the patent is not worked satisfactorily to meet the reasonable requirements
of the public, at a reasonable price, the Controller may grant compulsory licenses to any applicant
to work the patent. A compulsory license is a provision under the Indian Patent Act which grants
power to the Government to mandate a generic drug maker to manufacture inexpensive medicine in
public interest even as a patent in the product is valid. Compulsory licenses may also be obtained
in respect of related patents where one patent cannot be worked without using the related patent.
• Revocation of patent: A patent may be revoked in cases where there has been no work or
unsatisfactory result to the demand of the public in respect of the patented invention.
• Invention for defence purposes: Such patents may be subject to certain secrecy provisions, i.e.
publication of the Invention may be restricted or prohibited by directions of Controller. Upon
continuance of such order or prohibition of publication or communication of patented Invention,
the application is debarred for using it, and the Central Government might use it on payment of
royalties to the applicant.
• Restored Patents: Once lapsed, a patent may be restored, provided that few limitations are imposed
on the right of the patentee. When the infringement was made between the period of the date of
infringement and the date of the advertisement of the application for reinstatement, the patent has
no authority to take action for infringement.
Procedure of Patent
• Step 1: Write about inventions (idea or concept) with each and every detail.
Collect all information about your Invention such as:
 1. Field of Invention
2. What does the Invention describe
3. How does it work
4. Benefits of Invention
If you worked on the Invention and during the research and development phase, you should have some call
lab records which are duly signed with the date by you and the concerned authority.
• Step 2: It must involve a diagram, drawing and sketch explains the Invention
Drawings and drawings should be designed so that the visual work can be better explained with the
invention work. They play an important role in patent applications.
• Step 3: To check whether the Invention is patentable subject or not.
Not all inventions can be patentable, as per the Indian Patent Act there are some inventions which have not
been declared patentable (inventions are not patentable).
• Step 4: Patent Discovery
The next step will be to find out if your Invention meets all patent criteria as per the Indian Patent Act-
1. The invention must be novel.
2. The Invention must be non- obvious.
3. The Invention must have industrial applications.
• Step 5: File Patent Application
If you are at a very early stage in research and development for your Invention, then you can go for a
provisional application. It offers the following benefits:
1. Filing date.
2. 12 months time for filing full specification.
3. Lesser cost.
After filing a provisional application, you secure the filing date, which is very important in the patent world.
You get 12 months to come up with the complete specification; your patent application will be removed at
the end of 12 months.
When you have completed the required documents and your research work is at a level where you can have
prototypes and experimental results to prove your inventive move; you can file the complete specification
with the patent application.
Filing the provisional specification is an optional step if you are in the stage where you have complete
knowledge about your Invention you can go straight to the full specification.
• Step 6: Publication of the application
Upon filing the complete specification along with the application for the patent, the application is published
18 months after the first filing.
If you do not wish to wait until the expiration of 18 months from the filing date to publish your patent
application, an initial publication request may be made with the prescribed fee. The patent application is
usually published early as a one-month form request.
 • Step 7: Request for Examination
The patent application is scrutinized only after receiving a request for an RFE examination. After receiving
this request, the Controller gives your patent application to a patent examiner who examines the patent
application such as the various patent eligibility criteria:
1. Patent subject
2. Newness
3. Lack of clarity
4. Inventory steps
5. Industrial application
6. By enabling
The examiner makes the first examination report of the patent application upon a review for the above
conditions. This is called patent prosecution. Everything that happens for a patent application before the
grant of a patent is usually called patent prosecution.
The first examination report submitted to the Controller by the examiner usually includes prior art (existing
documents prior to the filing date) that are similar to the claimed invention and is also reported to the patent
applicant.
• Step 8: Answer the objections
Most patent applicants will receive some type of objections based on the examination report. The best thing
is to analyze the examination report with the patent professional (patent agent) and react to the objections
in the examination report.
This is an opportunity for an investor to communicate his novelty over the prior art in examination reports.
Inventors and patent agents create and send a test response that tries to prove that their Invention is indeed
patentable and meets all patent criteria.
• Step 9: clearance of objections
The Controller and the patent applicant is connected for ensuring that all objections raised regarding the
invention or application is resolved and the inventor has a fair chance to prove his point and establish
novelty and inventive steps on other existing arts.
Upon receiving a patent application in order for grant, it is the first grant for a patent applicant.
• Step 10:
Once all patent requirements are met, the application will be placed for the grant. The grant of a patent is
notified in the Patent Journal, which is published periodically.
Grounds for opposition
An application for a patent may be opposed by either a prior grant or a subsequent grant by any person on
the grounds specified in s 25 (1) and 25 (2) of the former Act. No other grounds stated in the Act can be
taken to oppose the patent. Some major opposition grounds, common to both pre-grant and post-grant
opposition, are mentioned below:
1. The Invention was published previously in India or elsewhere or was claimed previously in India.
2. The Invention is the formation of a part of the prior public knowledge or prior public use or
traditional knowledge of any community.
 3. The Invention is obvious and lacks an inventive step.
4. The Invention does not constitute an invention within the meaning of the Act, or the Invention is
not patentable under the Act.
5. Failure to disclose information or furnishing false information relating to foreign by the applicant.
Pre-Grant Protest: Section 25 (1) of the Patent Act and Rule 55 of the Patent Rules, 2003 provide the
procedure to be followed for pre-grant opposition. Pre-grant opposition can be initiated by anyone after the
application is published and before the patent is granted. If a request for examination is filed to oppose the
application, the Controller considers representation only. If a request for examination has not been made
by the applicant, it is possible for the opponent as an interested person to first file a request for examination
under Section 11B, and then file a pre-grant opposition.
Post-grant opposition: The procedure is followed to oppose the grant under Section 25 (2) of the Patents
Act, 1970 and Rule 55A to 70 of the Patent Rules, 2003. A Post-grant opposition can be filed by any person
interested in any of the specific grounds before a period of one year from the date of publication of the
grant of the patent. Unlike a pre-grant protest, a pre-grant protest must be filed by an individual and not by
a person. The expression (people interested) is defined under section 2(t) of the Patents Act, 1970 wherein
a person/party is engaged, or is conducting research in the same field with which the Invention (which is to
be opposed) is concerned.
What are the Authorities concerning patent
The Controller of Patents is considered as the principal officer responsible for administering the patent
system in India. The Controller is regarded as the overall supervisor of the four Patent Offices in Chennai,
Delhi, Mumbai and Kolkata. Since the Controller also acts as the Registrar of Trademarks with the Head
Office of the Trade Office in Mumbai, the Controller acts as a patent from his office in Mumbai. Officially,
the patent has its head office in Kolkata (Calcutta). Patents granted under the Patents Act and other officers
of the Patent Office discharge their functions under the direction or regulation of the Controller.
Patent Infringement
Patent infringement is a violation which involves the unauthorized use, production, sale, or offer of sale of
the subject matter or Invention of another’s patent. There are many different types of patents, such as utility
patents, design patents, and plant patents. The basic idea behind patent infringement is that unauthorized
parties are not allowed to use patents without the owner’s permission.
When there is infringement of patent, the court generally compares the subject matter covered under the
patent with the used subject matter by the “infringer”, infringement occurs when the infringer Uses patent
material from in the exact form. Patent infringement is an act of any unauthorized manufacture, sale, or use
of a patented invention. Patent infringement occurs directly or indirectly.
Direct patent infringement: The most common form of infringement is direct infringement, where the
Invention that infringes patent claims is actually described, or the Invention performs substantially the same
function.
Indirect patent infringement: Another form of patent infringement is indirect infringement, which is divided
into two types:
• Infringement by inducement is any activity by any third party that causes another person to infringe
the patent directly. This may include selling parts that can only be used realistically for a patented
invention, selling an invention with instructions to use in a certain method that infringes on a method
patent or licenses an invention that is covered by the patent of another. The inducer must assist
intentional infringement, but does not require intent to infringe on the patent.
 • Contributory infringement is the sale of components of material that are made for use in a patented
invention and have no other commercial use. There is a significant overlap with indications, but
contributor violations require a high level of delay. Violations of the seller must have direct
infringement intent. To be an obligation for indirect violations, a direct violation must also be an
indirect act.
Remedies for Patent Infringement
Patent infringement lawsuits can result in significantly higher losses than other types of lawsuits. Some
laws, such as the Patent Act, allow plaintiffs to recover damages. Patent infringement is the illegal
manufacture or usage of an invention or improvement of someone else’s invention or subject matter who
owns a patent issued by the Government, without taking the owner’s consent either by consent, license or
waiver. Several remedies are available to patent owners in the event of an infringement. Measures available
in patent infringement litigation may include monetary relief, equal relief and costs, and attorneys’ fees.
Monetary Relief: Monetary relief in the form of compensatory damages is available to prevent patent
infringement:
1. Indemnity compensation – A patent owner may have lost profits for infringement when they
established the value of the patent.
2. Increased damage – Up to three times, compensation charges can be charged in cases of will or
violation of will.
3. The time period for damages – The right to damages can be claimed only after the date when the
patent was issued and only 6 years before the infringement claim is filed.
Equitable relief: Orders are issued by the court to prevent a person from doing anything or Act. Injections
are available in two forms:
1. Preliminary injunction – Orders made in the initial stage of lawsuits or lawsuits that prevent parties
from doing an act that is in dispute (such as making a patent product)
2. Permanent injunction – A final order of a court which permanently ceases certain activities or takes
various other actions.
Conclusion
Patents can provide great value and increased returns to individuals and companies on the investment made
in developing new technology. Patenting should be done with an intelligent strategy that aligns business
interests to implement the technology with a wide range of options in the search for how, where and when
to patent. As an example, with a focus on international considerations and regulations in specific countries,
it is possible for a company to achieve significant savings and improve the rights gained using patents.
Validity of Copyright: The general rule is that copyright lasts for 60 years. In the case of original literary,
dramatic, musical and artistic works the 60-year period is counted from the year following the death of the
author. In the case of cinematograph films, sound recordings, photographs, posthumous publications,
anonymous and pseudonymous publications, works of government and works of international
organisations, the 60-year period is counted from the date of publication.
Validity of Patent: Patent registrations have a validity of 20 years from the date of filing of patent
application, irrespective of whether it is filed with provisional or complete specification. In case the Patent
Application is filed under the However, in case of international patent applications filed under PCT, the
validity of the patent is for a term of 20 years beginning from date of international filing.
Validity of Trademark: Trademark registrations are valid for a period of 10 year from date of application.
A registered trademark’s validity can be extended at the end of ten years by filing a trademark renewal
application.